Justice Antonin Scalia hinted that the Supreme Court will rule on National Security Agency domestic surveillance, while talking in a packed Brooklyn auditorium on Friday night.
The topic of the NSA’s controversial surveillance of telephone metadata came up during a laughter-filled Q&A between Scalia and Judge Andrew Napolitano, a faculty member at Brooklyn Law School and a close personal friend of the justice he accidentally called “Nino.”
While suggesting that the high court will take up NSA surveillance, Scalia expressed his opinion that judges should not be deciding matters of national security.
“The Supreme Court doesn’t know diddly about the nature and extent of the threat,” Scalia said. Later on, he added, “It’s truly stupid that my court is going to be the last word on it.”
Still, he hinted he would rule that NSA surveillance does not violate the Constitution if and when the issue comes before the Supreme Court. Although one judge has ruled the spying violates the Fourth Amendment, Scalia may disagree based on his strict interpretation of the Constitution.
The text of the Fourth Amendment bars unwarranted searches of “persons, houses, papers, and effects.” But, as Scalia told the audience, “conversations are quite different” from all four of those things.
One astute law student said something, however, that may make Scalia reconsider his initial thinking on the constitutionality of the NSA’s domestic surveillance. That student asked if data in a computer were considered “effects” under the Fourth Amendment, in an apparent reference to the NSA capturing communications over the Internet.
Scalia, visibly impressed by the question, said, “I better not answer that. That is something that may well come up [before the Supreme Court].”